Thursday, June 18, 2015

No Middle Ground in Confederate License Plate Case

by Michael Dorf
Justice Breyer's majority opinion in Walker v. Texas Div., Sons of Confederate Veterans (SCV)is so badly reasoned that it cannot be taken seriously at face value. After explaining why I think Justice Alito's dissent is more persuasive, I'll explore why both the majority and dissent disregarded proposals for an intermediate category of mixed government/private speech.

First, a quick overview. For a substantial fee, Texas, like many states, offers "specialty" license plates. There are hundreds of off-the-rack plates expressing support for various civic organizations, causes, leisure-time activities, etc., and also the possibility of approval for a custom-designed plate. SCV applied for a specialty plate with its name and a Confederate Battle Flag logo but the relevant Texas agency rejected it after a public hearing on the ground that it would be considered offensive to many Texans. SCV sued, claiming censorship.

The SCOTUS ruled 5-4 in favor of the state, with Justice Thomas joining the four most liberal members of the Court in the majority. The lineup is interesting, no doubt, but I'll mostly leave for others the job of speculating about why Justice Thomas broke ranks from the other conservatives. (One possibility is that despite his general conservatism, Justice Thomas, as only the second African American ever to serve on the Court, has a special understanding of the meaning of the Confederate Battle Flag.)

As I explained in a Verdict column when the Supreme Court granted review in SCV last December, the case appeared to turn on whether the Texas specialty license plate is understood as government speech or private speech in a limited public forum. And that is in fact how it came down. The majority says it's government speech, so the government wins because "SCV cannot force Texas to include a Confederate battle flag on its specialty license plates." The dissent says it's private speech on a government-created forum for tiny billboards and that the viewpoint-based restriction is invalid.

The majority opinion makes some sound arguments for why government speech in general should not be subject to the same restrictions as government regulation of private speech. But it is really quite unpersuasive in showing that the Texas program is government speech.

The Court says: "The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider." That's true as a general matter, but as Justice Alito explains with some devastating examples, the evidence is really overwhelming here that the government is not seeking to convey, as its own, the various messages that it approves for specialty plates. Here is just one of Justice Alito's illustrations: The state issues specialty plates "with the names of the University of
Texas’s out-of-state competitors" in collegiate athletics, including "Notre Dame, Oklahoma State, the University of Oklahoma,
Kansas State, [and] Iowa State." Yet it cannot possibly be inferred "that the
State of Texas was officially (and perhaps treasonously)
rooting for the Longhorns’ opponents."

Justice Breyer really provides no answer to this example and others like it. He merely concludes that the specialty plates are government speech because Texas exercises the power to deny plates that it disapproves of. But while that may be technically relevant to whether Texas has created a "forum" for speech, it does not show that Texas is conveying as its own just those messages that Texas car owners pay to have displayed on their license plates.

Meanwhile, although Justice Alito does an excellent job of showing why the majority is wrong to conclude that Texas is engaged in anything like pure government speech, his opinion does not really confront the basic problem. Justice Alito is right that even in a limited public forum the government cannot engage in viewpoint discrimination, but in most limited public fora it is clear to the public that the speech at issue is wholly private. State-issued license plates are potentially different, however. Although Justice Alito's examples show that Texas does not intend to convey as its own all of the messages on specialty license plates, there is nonetheless a substantial risk that Texas nonetheless will convey some level of government endorsement of the private speech on the specialty plates. During the oral argument, the lawyer for SCV contended that the state could respond to that risk with a disclaimer, but Justice Sotomayor was rightly skeptical about finding room for such a disclaimer on a license plate.

Given the record, it is understandable that Justice Alito characterized the government interest here as one in avoiding offending the public. The First Amendment does not permit the government to engage in viewpoint discrimination to protect the public against offensive speech by private speakers. However, the government does have a real interest in avoiding being seen by the public to endorse offensive messages. Justice Kennedy asked the SCV lawyer during the oral argument whether the First Amendment obligated Texas to issue specialty license plates containing racial slurs. He bit the bullet and said yes, but that strongly suggests that this is the dissent's position as well: If the government cannot censor racist slurs on bumper stickers--and it cannot--then it must issue specialty license plates containing racist slurs (or issue no specialty plates at all). Can that really be the meaning of the First Amendment?

In the end, both the majority and the dissent are unsatisfying because, as Professor Caroline Corbin has argued, specialty plates fall into an intermediate category of "mixed" government/private speech. In my December Verdict column, I acknowledged that recognizing such an intermediate category would not magically turn hard cases into easy ones, but I argued that it would be less artificial than pretending that mixed speech is pure government speech (as the SCV majority does) or that it is pure private speech (as the SCV dissent does).

No one on the Court opted for the mixed-speech category, either in SCV or in the Summum case, on which the majority relied heavily. Justice Souter's concurrence in Summum came close to recognizing a mixed-speech category but even he concluded that the government's decision whether to accept a monument in a public park was ultimately government speech and, in any event, Justice Souter retired from the Court shortly after that decision.

Why are there no takers for mixed speech? I'll suggest two possible explanations. First, it is almost always easier to write an opinion (or dissent) that applies existing doctrinal categories. Minting a new category would be bolder and would be harder to disguise as the mere application of pre-existing law.

Second, despite the Justices' disagreement here and from time to time on other First Amendment issues, the Roberts Court generally is a strongly pro-free-speech Court across the ideological spectrum. And for roughly the last half century, strong protection of free speech has been closely associated with rules rather than with standards or balancing. To create a category of mixed government/private speech would almost inevitably be to adopt a balancing approach. That is what Professor Corbin proposed (intermediate scrutiny) and that is also what Corey Brettschneider and my colleague Nelson Tebbe proposed in their NY Times op-ed endorsing a mixed-speech approach.

Although it can be argued that numerous Supreme Court doctrines tacitly balance the good of speech against other goods, express balancing has long been associated with the sort of inadequate protection for speech championed by Justice Frankfurter. Thus, the Court's rejection of any middle ground in SCV can be understood as ultimately speech-protective, even as the free speech side of the case lost.

24 comments:

Mixed messaging might be something Justice Breyer would support, but it would be harder for him to get a majority for it. See, e.g., his separate concurrence in the sign case for his openness to balancing.

If Thomas was influenced by the nature of the message (see also his vote and speaking up during oral argument back when he did that in the case involving cross burning), the majority here is overbroad. OTOH, what if there was a limited compelling interest involving racist (and perhaps other) type messages at least as far as the government itself giving them out (as compared to a totally private bumper sticker). Some law professors even have argued this is a "badge of slavery."

Finally, the mixed message theme seems to me the overall concern here. Take the example involving out of state sports teams. The state isn't fully "endorsing" this, but there can be a message being sent that they are promoting sports overall. So, they might have a diverse range of college plates, but not as many on some other subject. OTOH, they don't want to in any fashion "endorse" a racist message. And, a former Confederate state might be particularly sensitive about others thinking they are doing that (note, e.g., South Carolina flies a Confederate flag even today at their statehouse).

I'm unsure about the invalid nature of the result today but am disappointed that Breyer didn't engage the dissent. I expect that from Kennedy; not Breyer.

I wonder if the Court at least took a small step towards a mixed-speech category through its (very brief) reconciliation of Wooley. The Court basically said that there are two parties to the speech involved in a license plate: the driver/owner of car and the government. Each party now appears to have a veto - the driver's/owner's based in First Amendment right against compelled speech, and the govt's power based in the lack of application of the First amendment.

If it's pure government speech, then the driver/owner wouldn't seem to have any veto right. Just like I can't veto the message "in god we trust" on money, even if I carry it around in my pocket and hand it to people. And if it's pure private speech, then the government can't censor. So by saying both parties have a right to veto the speech, the Court effectively found that it's a sort of mixed speech.

Of course, it's not clear what implications this has for establishment cases. In Town of Greece, the Court (rather unpersuasively) found that the legislative prayer was really a form of purely private speech. But the Court also seemed to say that the government could mandate that the prayer at least express a certain mood and reverence, even if it couldn't dictate the theological aspects of the prayer. But the Court never explained why the government can regulate the content of the prayer if it was a private prayer. Perhaps it was another form of mixed speech. But then raises serious problems in the government being involved in any sort of religious speech (assuming you think the establishment clause frowns on that sort of thing, of course).

I guess a black mark over "In God We Trust" would be illicit defacing of currency while someone was allowed to cover up the motto in Wooley. I wonder if someone actually went court over the first thing; guess it's unlikely to get that far though a troublesome sort might pay in cash some government fee to try to pick a fight.

@Joe: Taking no position on the rest of Your comment, I would just like to say My experience unfortunately suggests South Carolina is either not "sensitive about others thinking they are [endorsing a racist message]" or simply don't care.

I read a wide range of legal blogs (this one remains My favorite even when I disagree). Yet, I find it curious how a sizable portion of the commentary on this case raises the question of "Why did Justice Thomas vote with the more liberal Members? Is it because He's black and this case involved a symbol of the confederacy?" Isn't it instead more likely as it first appears: He sides with the court opinion because He agrees with it? I don't recall anything in His Honor's statements which would suggest a departure from principle based on this particular content. Can Anyone point Me toward such?

"However, the government does have a real interest in avoiding being seen by the public to endorse offensive messages."

I don't agree. It may be true that this government or that government in specific--that is to say a particular Administration such as the Obama administration--has a real interest in avoiding being seen by the public to endorse offensive messages but there is nothing that adheres to the general notion of government or American government in particular that requires a government not to offend. Indeed, often government speech does offend and is even intended to offend for the simple practical reason that almost anyone can and does find something offensive. Heck, there are even people who think the refusal of the government to speak out on a particular topic is offensive.

Stuart makes an interesting point, which I might broaden. Perhaps this case reflects a more general view that "compelled speech" is worse than "restricted speech." In the case of mixed government/person speech like a license plate, neither party can compel the other to speak, but either party can veto the collective speech.

This seems to be handled under current law by classifying the speech as government speech but giving the person the right to choose not to repeat or display that speech. This is true even if, as in this case, the speech originates with the person and the government chooses not to repeat it.

I just can't endorse the "mixed speech" proposal proposed by Prof. Corbin.

Corbin proposes a five factor test to determine whether X is government speech, private speech, or mixed speech. The five factors are: (1) Who is the literal speaker? (2) Who controls the message? (3) Who pays for the message? (4) What is the context of the speech (particularly the speech goals of the program in which the speech appears)? and (5) To whom would a reasonable person attribute the speech? Corbin argues that when "government" is the answer to all 5 questions, then we have a case of government speech; when "private party" is the answer to all 5 questions, then we have a case of private speech; but when the answer to some of the questions is "government" and the answer to some of the questions is "private party" (or when "both" is the answer to many of the questions), then we have a case of mixed speech.

My own view is that questions (2)-(4) are just irrelevant to the free speech issue. The most important question, clearly, is question (1). And then question (5) becomes relevant, but not to the issue of who is speaking (government, private, or mixed): it's relevant to the question of whether government has a sufficient justification for censoring the message, or the manner of its delivery.

Here's how I would analyze the license plate case. The government issues the license plate and this is something most people know. The government also puts messages on the plate, where it clearly counts as the speaker, and is so perceived. In the case of specialty plates, the government makes room on the plate for a private party to express a message. It's plain, then, that one part of the specialty plate is reserved for government speech, while another part of the specialty plate is reserved for private speech.

The part of the plate that is reserved for private messages counts as a designated public forum. What this means is that the government may not engage in viewpoint discrimination, that is, it may not censor what the private party says on the DPF part of the license plate, *unless the censorship is narrowly tailored to achieving a compelling government objective". This is just the familiar point that strict scrutiny applies to any censorship proposal in a DPF.

Here the government objective is that ordinary people looking at the plate not reasonably infer from it that the government is endorsing a particular message (whether or not it is the message that the private party intends to convey). This is an important objective, and it becomes compelling when it is particularly important that government not be publicly identified as the speaker. If censorship is necessary to achieving this compelling end, then it passes the test of strict scrutiny.

The DPF part of the specialty plate in this case is at bottom and left. On the bottom of the plate, we have "SONS OF CONFEDERATE VETERANS" and on the left side of the plate, we have a symbol with a picture of the confederate battle flag in the middle, bordered in gold (thus giving the impression of being an official seal), and in very small capitals moving clockwise from a position to the left of the flag: "SONS OF" (left), "CONFEDERATE" (top), "VETERANS" (right), and "1896" (bottom), between the picture of the flag and the gold border.

This speech is clearly private speech, not government speech, in a DPF. The question is whether government may censor it by refusing to issue the specialty plate requested by SCV. The answer, it seems to me, is yes. This is because it is particularly important to the State of Texas that it not be identified as endorsing the old confederacy or any message that places the confederacy in a positive light, the message as it appears in the design would be read by many or most reasonable onlookers as such an endorsement, and censorship of this particular plate is the only way of achieving the compelling end.

I hasten to add that Texas would not have a compelling reason to censor other plates with a similar message. For example, a plate that had "SONS OF CONFEDERATE VETERANS" on the bottom (without the battle flag) would be fine.

How about a specialty TX plate: "SONS OF UNION SOLDIERS" on the left and the American Flag of 1861 on the right?

As to the blessing of "SONS OF CONFEDERATE VETERANS" without the confederate battle flag as private speech, what message does that speech convey that would be considered "fine"? Does this place the confederacy in an unfavorable or positive light? Could the message of such "SONS" be pride in their forbears' fight against the Union in defense of slavery? By the way, I assume a desire for such a specialty plate need not actually be of a son, grandson or great grandson of a TX confederate soldier.

I'm unclear why Sam Rickless doesn't think the middle components of the five part test is relevant. He says "it is plain" that part of the plate is reserved for private speakers but that the government has an interest in people not thinking they endorse the speech on the plate.

But, why would people think that if it is "clearly" private? If it was a personal bumper sticker on the plate, people wouldn't reasonably think the government endorses the message. And, would the state have the same power to deny it? It actually has more power over the plate since it partially 'controls' and creates it more than let's say the bumper of the car. So, yes, the various aspects of the test matter.

The question becomes even clearer in other contexts. So, e.g., the government pays for medical care. This has been determined to allow them to not allow doctors to recommend abortion. This to me is wrong (see dissent in Rust v. Sullivan) since the government paying is only part of it. But, the speech being on the government's dime does matter. They have more control over messages there than purely private speech. And, the purpose matters -- so Medicaid funding is to pay for health care. Speech related to that can be regulated. OTOH, anti-abortion speech is ideological. It is not a good fit to the program.

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As to another reply, the government has an interest if avoiding offense, since that is seen as bad, and the government has a reason to avoid as far as able the idea that the government does not respect equally (in relevant ways) the public. "Offense" here doesn't really mean "any type" of offense either but specific types of relevant concern.

Over at Balkinization Nelson Tebbe has just posted on this case, much in the manner of Mike's post, with links to earlier expressed views of Tebbe. He provides the S. Car. example that is pending re: Pro Life, in contrast to Pro Choice.

Query: Might "dueling plates" lead to road rage?

And then there's GOP presidential candidate Sen. Lindsey Graham (Cracker, SCar) response to South Carolina flying the confederate flag in connection with the recent tragedy: "It's what we are." - Whatever that is.

As to Shag's comment, note that Sam Houston, the hero of Texas independence, opposed secession. He told a crowd, after being expelled for not taking a Confederate oath:

"Let me tell you what is coming. After the sacrifice of countless millions of treasure and hundreds of thousands of lives, you may win Southern independence if God be not against you, but I doubt it. I tell you that, while I believe with you in the doctrine of states rights, the North is determined to preserve this Union. They are not a fiery, impulsive people as you are, for they live in colder climates. But when they begin to move in a given direction, they move with the steady momentum and perseverance of a mighty avalanche; and what I fear is, they will overwhelm the South."

@Shag: If Texas can't articulate a compelling reason to ban "SONS OF UNION SOLDIERS" and the flag of 1861, then it needs to allow it, assuming that it allows other such speech on its specialty plates.

By "fine", I don't mean that I approve of the plate. Far from it. I just mean that Texas is not permitted to ban "SONS OF CONFEDERATE VETERANS" if it is unreasonable to think that people would take that to be a form of messaging or endorsement by the State of Texas.

I leave open that there might be other compelling reasons to ban certain kinds of speech on the private sections of the specialty plates. For example, compelling reasons of public safety would argue for the banning of language that would likely incite or exacerbate incidents of road rage.

@Joe: The bottom of the plate is pretty clearly private. This can be inferred from the nature of the message there by those who look at the plate. The left of the plate is a fairly sizable blank space. Private parties like to place pictures there. Sometimes it is clear from the context that the pictures come from private actors (e.g., the logo of the World Wildlife Fund). But sometimes not. In this particular case, it is far from clear that the picture of the confederate battle flag is a form of private speech, thereby leaving a serious risk that a reasonable person would perceive it as government speech or endorsement.

Let me revise the point about the middle components of the five part test. It's not that I think they are irrelevant. What I think is that when they are relevant, they matter in virtue of their connection to the fifth component. That is, if the fact that the government is paying for the message, or the fact that it controls the message, or the speech goal of the program, when widely known, contributes to the reasonable belief that government endorses some message with which it, for compelling reasons, does not wish to be associated, then we have a potential justification for censorship. The point is that the middle components of the test have no *independent* significance, and whatever significance they have is channeled through the fifth component. And, as I have already argued, the fifth component does not concern the issue of mixed speech.

What " ... would likely incite or exacerbate incidents of road rage" in TX? Might it be a "SONS OF CONFEDERATE VETERANS" private speech plate holder over a "SONS OF UNION SOLDIERS" plate holder, or vice versa, keeping in mind what was the name of GOP presidential candidate and former TX Gov. Rick Perry's famous ranch? The confederate battle flag is a lot like the burning cross on a lawn as perhaps recognized by Justice Thomas as a clear message. And even without the confederate battle flag, praise/pride regarding the confederacy also sends a clear message. Maybe we need a specialty plate modifying NH: "LIVE AND LET LIVE!" Leave the slicing and dicing in 5 or more parts to the salad chef.

The fifth criteria is who a reasonable person would attribute the speech. Again, I don't think that is the only concern when controlling the breadth of governmental action here. A person might not attribute certain speech to the government but if they 'control' or 'fund' it, the government would have more control. The goal also matters (see NEA example in article or my abortion example).

At ACS Blog, a liberal leaning professor flags a government run library. Choice of books there is somehow "attributed" to the government, but the other things matter too. Government compelling interest is offered as part of SR's test. But, why not use the multi-part test itself there to judge the speech too?

I'm not sure the particular limits to the "bottom of the plate" rule here -- it clearly is a matter of context. Just how much space must it take up as compared to here? It seems a bit sketchy. I am not sure how unreasonable an observer would be to think a "Son of the Confederacy" plate (a license plate supplied by the government) merely with the bottom strip at issue is endorsed in some fashion by a former state of the Confederacy. I'm unsure what the flag would change things.

Anyway, I think the multi-part test helpful in regulating government speech and it would not be an all/nothing test -- various government funded or controlled areas are "mixed" in nature. Push comes to shove, I think the liberals here would think so too in specific cases. So, putting aside Thomas, I think some of the fears cited by some critics somewhat overblown. OTOH, this does suggest perhaps the majority opinion was not written that well in some fashion.

@Shag: I think there is plenty of evidence that the confederate battle flag is an in-your-face symbol of the confederacy and white supremacy. That's gasoline on the fire, if you ask me. Words that do not involve explicit endorsement of white supremacy just don't work on people's minds the same way.

@Joe: What matters with respect to government vs. private speech is who is speaking. This just strikes me as a straightforward conceptual matter. Beyond this, there are practical problems. First, why not add further components to the five-part test? Why not ask who is financially supporting the folks who are directly paying for the speech? Why not ask whether the content of the speech is designed to mimic a form of speech typically used by the government? Once you get away from the question of who the speaker is, it is unclear why the other material is relevant, except inasmuch as it bears on the question of whether there is a compelling reason for the government to censor the speech. Second, we want the law to provide guidance to the government and private parties. A five part test is rather messy. It would be desirable, other things equal, to avoid it. And, as I have argued, we can.

As a new attorney back in Boston in 1954, the focus on license plates was important to identify an alleged tortfeasor and determine whether he/she was adequately insured to pursue a personal injury claim. I got out of that early in my career even before no-fault came along. But vanity plates here in MA can sometimes be confusing - was it the Red Sox, the Celtics or the Bruins? (The Braves had left Boston long before vanity plates came into vogue.) In those early years there were forms of "vanity" plates with low digits, presumably available via political connections with the then political DMV. Names, titles, etc, were introduced, some of a commercial nature, some crude, some with humor. About 5 or 6 years ago, here in the Boston suburb of Brookline where I have resided since the early 1970s, while returning from shopping I notice a fancy car with the MA plate that I thought read "SEX" and couldn't understand how that got by the DMV censors. Then I realized that I misread the plate, which was actually "S3X" suggesting that perhaps I had a dirty mind.

NH plates resulted in brouhahas with the slogan "LIVE FREE OR DIE." Presumably some non-libertarians were offended by this and would tape-over the "OR DIE" but when brought to the attention of NH authorities, action resulted. How dare someone tamper with the official message of the sovereign state of NH.

So perhaps we should go back to plain vanilla license plates to serve the basic purpose of identification for public safety and other valid public purposes rather than serving as a billboard for private views. That's what bumper stickers are for, clearly private speech, which can of course be vile at times. By the way, one of my favorite bumper stickers read: "IF YOU CAN READ THIS, YOU ARE DRIVING TOO CLOSE TO MY CAR!"

I suspect the Conservative Justices have no problem with the outcome of this case. All of the Justices have decided the impact on free speech due to this case is zero, and that this case won't be used as precedent.

You have almost a singularly unique issue ripe for misunderstanding when talking about a Confederate symbol on a southern state's license plate.

For these reasons, all of the parties engaged in, shall we say, "finesse" -- what purists would call a blatant disregard for the law.

I'll pick on Alito a bit since the majority has been bashed thoroughly. In a normal case a Judge summarizes the facts, sometimes using the method of questions and answers, and proceeds to the legal doctrine that should apply in light of those facts. In a normal case it strikes me that the following question would be somewhere in the dissent: "Would a person who saw a Confederate flag on a car's plate "reasonably" interpret this as official Texas support for the Confederacy?" One would then answer the question, "Yes, that is entirely possible." One would then move onto legal arguments explaining why Texas must allow the expression anyway.

I find this one interesting for a variety of reasons, but in fact the most interesting one to me is "Why did Texas refuse this plate in the first place?" The confederate flag, while absolutely a sign of the confederacy, isn't exclusively a sign of white supremacy in the south. I've always found it a bit odd, but it doesn't have the same kinds of exclusively negative connotations in the southern United States that (for instance) the Nazi flag would have in Germany. In many areas it's venerated as part of southern culture in the same way that southerners deride "Damn Yankees" or picante sauce made in New York City.

I realize that there's no way to completely separate the confederacy from the great injustice that is slavery, but confederate history and the confederate flag is sometimes used as shorthand to unite an area of the country that continues to share a set of common culture and values (I challenge anyone to get decent barbecue north of the Mason-Dixon line), even if those are no longer necessarily the same culture and values that caused them to form the confederacy in the first place. I am certain this usage of the confederate flag is more common among European-Americans than African-Americans, but that a certain form of speech is exclusively used by one group doesn't inherently make the intention of the speaker hostility towards those outside the group.

In short, while this will continue to be debated, and rightly so, I think sometimes it's hard for people who haven't lived in the south to realize that the confederate flag doesn't necessarily equal slavery to southerners, even if it arguably should.

Just by the way, I agree with Shag. I worry that the squeeze on state and local governments (via people's refusal to pay higher taxes to fund the services they refuse to do without) will lead them to sell space on government property beyond just license plates. In San Diego, where I live, private companies pay the city to paint the entirety of the outside of public trolley cars and buses with advertisements. What's next? The naming of public buildings in honor of private companies? Will I soon be entering Qualcomm City Hall or the Houghton Mifflin Harcourt San Diego Public Library? What about ads on highways, on public buildings, on ambulances and fire engines and police cars? Enough already! But of course, because states have decided to issue specialty license plates with private messages on them, we can't duck the 1A issue, I'm afraid.

Is Greg providing a rebel parody of Gershwin's "It Ain't Necessarily So"? As to Greg's culinary claim for below the Mason-Dixon line, it definitely ain't necessarily so. Boston's City Hall Plaza annually features barbecue from both sides of the line.

And Greg's reference to "Damn Yankees" is clearly out of context on the topic as it relates more to baseball and one-time NY Yankees domination, an abomination to many on both sides of the line. (Many of those "Damn Yankees were products of the South.)

As to Greg's concept of uniting the culture and values of the South, what exactly is that culture and values in relation to African-Americans living in the South?